Fact is there are standard procedures that have been followed throughout history, and the Supreme Court made a very disturbing and deliberate decision to involve itself in war time policy. If not for this, there would have not been the need for the Mil...

Isn’t it any wonder why so many think the liberals treat this War on Terrorist as a law enforcement deal and not a war? The liberals scream that they are not but their actions and thoughts betrays them. Then again most liberal don’t have the slightest concept of what war is.

That is misleadingly worded. Eisentranger (SupCt, 1950) is the definitive word on this: "A nonresident enemy alien has no access to our courts in wartime.... These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States." Persons on American soil are entitled to habeas, persons not on American soil are not.

In this, I have to agree with Jack Balkin: If an Administration were to attempt to apply the bill to deny habeas to someone held inside the US, the bill would be found unconstitutional as applied in that instance - the person would have the right to prove he was a citizen and therefore not subject to trial by a military commission. As far as Gitmo detainees are concerned, however, all the bill does is correct the recent misinterpretation of 28 U. S. C. §2241 in Rasul v. Bush (2004) wherein the Court decided that the US' jurisdiction and control over Gitmo meant that habeus petitions from there were not under Eisentrager.

Padilla has been charged now and, if he's proved guilty, they can let him spend the rest of his life in beautiful Florence, Colorado. No problem, though the case against him is starting to look pretty weak. But holding American citizens without charges, no court hearings and no right to confront his accusers seems to be ...well, un-American.

Just because WaPo is confused doesn't mean that's an excuse for you too.

The bill, in section 948a, defines "unlawful enemy combatant" as follows:

a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States

There's a big problem here, because they easily could have said "an alien person." Instead, they said "a person." This is very troubling, especially because there is other language that clearly references "alien," elsewhere in the bill. In other words, this omission is quite deliberate.

And here's what this means: the president can unilaterally declare, without review by any court, that any US citizen is an "unlawful enemy combatant," as long as the president, in his sole discretion, believes this person has "materially supported hostilities against the United States." (What might that mean? Sending money to an Arab charity? Subscribing to the Hezbollah channel on satellite TV? Renting F911?)

So what happens to such a person? Will they be tried by a military commission? Will they be tried at all, or simply detained indefinitely? Answer: whatever the president wants.

It's true that 948c says that "any alien unlawful enemy combatant is subject to trial by military commission under this chapter." Trouble is, this language does not rule out the idea that someone other than an "alien unlawful enemy combatant" might also be "subject to trial by military commission." We already know from 948a that a US citizen can be declared an "unlawful enemy combatant." The problem with 948c is that it tells us nothing about what will happen to this particular US citizen. At best, it leaves a grey area. It does not exclude US citizens from prosecution by military commission. It simply makes an affirmative statement about what happens to an "alien unlawful enemy combatant," and leaves us to wonder what's going to happen to a US citizen who has been declared an "unlawful enemy combatant."

Here's one possibility: detain him indefinitely.

Totally aside from all that, Anderson is exactly right about this: "how exactly would I be able to get to a court and show that I’m a citizen?"

This bill gives POTUS the power to snatch any US citizen off the street, and detain him indefinitely, simply by making a unilateral declaration, subject to no judicial review whatsoever, that the person has "materially supported hostilities against the United States."

The Washington Post is incorrect. Anyone, including an American citizen, can be designated an enemy combatant and held without habeas corpus rights.

Shame on the Washington Post for reporting that inaccurately.

I'm not sure how much use precedent is, precisely b/c this is an "unprecedented" kind of thing. David Addington et al. are deliberately aiming at the gray areas, trying to exploit all the Executive power they can.

I think Amar and Story are more plausible as far as the plain meaning of the text goes, and certainly, the policy implications of jurisdiction-stripping are horrible (as both parties would be able to admit, in a less partisan clime).

But it comes down to politics. Bush has 4 votes on the Court for just about anything his sneaky heart desires. And then there's Kennedy -- we will need an "ATTK" internet abbreviation, b/c we are going to be saying that a lot in years to come.

--As for Pug, he's pointing to a gray area in the MCA: "unlawful enemy combatant" doesn't appear to exclude U.S. citizens. To say nothing of DOD's simply grabbing Anderson, locking him up in the "alien" cage, and when he says "but I'm a U.S. citizen!" responding "we don't think so."

Without habeas, how exactly would I be able to get to a court and show that I'm a citizen?

I wouldn't.

Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.

Have we been invaded? Is there a rebellion under way? The most egregious thing about the new law is that it applies to American citizens. I don't know if enough people appreciate it, but habeas corpus is the only thing that keeps the government from being able to throw you in a dungeon.

You used to have the right to an attorney, a hearing in open court and to confront your accuser. Those were basic American rights. It is incredible that so many "conservatives" would cheer as those right were taken away.

Once again we lose more of our system "so them terr'rists won't win." Seems like they're winning hand over fist with our current leadership which has exploited them like a gay Catholic priest at an all boy's school.

When you deny the accused the right to see the evidence being used against him or her, the system is bust.

When you deny the accused the right to question those providing the evidence, the system is bust.

When evidence coerced through aggressive interrogation techniques is deemed admissible, the system is bust.

Those defending the system may very well have got the right person, but they can't be trusted, because the system is bust.

The evidence may be true, but it can't be trusted, because the system is bust

Those providing the evidence may be men and women of the highest calibre, but they can't be trusted, because the system is bust.

Most frightening of all perhaps (as noted by someone else on another blog) is the fact that President Bush, according to the text of his interview with Bill O Reilly, continues to insist that ALL those now held in GITMO were taken from the battlefield and not, as is now known, handed over by Afghan warlords for a bounty.

That this is the guy who gets to say who is or isn't a terrorist is an act of terror in itself.